When judicial restraint goes too far

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IN A SPEECH on the federal judiciary at Wake Forest University last week, John McCain sounded the familiar conservative call for judges who know their place. "My nominees," he promised, "will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power." The judiciary's moral authority depends on self-restraint, said McCain, and "this authority quickly vanishes when a court presumes to make law instead of apply it."

The senator emphasized the importance of judicial modesty and deference to the elected branches of government, lamenting that "federal judges today issue rulings and opinions on policy questions that should be decided democratically." He criticized Barack Obama and Hillary Clinton among other things for not being concerned "when fundamental questions of social policy are preemptively decided by judges instead of by the people and their elected representatives."

But is it really the proper function of the courts to simply rubber-stamp laws passed by Congress and state legislatures? Is a law presumed constitutional merely because elected officials enacted it? "If my fellow citizens want to go to Hell," wrote Justice Oliver Wendell Holmes, a staunch advocate of judicial restraint, "I will help them. It's my job."

It was a clever remark -- but a poor recipe for sustaining the Framers' system of checks and balances, or defending important liberty interests against political encroachment. Quite the contrary: Judicial deference to the political branches has led to some of the worst judicial decisions in American history. Think of Plessy v. Ferguson, the 1896 case upholding a Louisiana statute that mandated racial segregation in public accommodations. The Supreme Court certainly deferred to the elected lawmakers who wrote that statute. It also legitimized a denial of fundamental freedoms and helped lock Jim Crow in place for the next 60 years.

But you don't have to go back to 1896 for examples of how liberty suffers when commendable judicial restraint deteriorates into unfortunate judicial passivism.

In a lucid new book -- The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom -- legal scholars Robert Levy of the Cato Institute and William Mellor of the Institute for Justice offer a mournful litany of high-court blunders in the modern era. The cases involve subjects as diverse as campaign finance, gun control, and the right to pursue an occupation; each, the authors write, had a "destructive effect on law and public policy" -- either by enlarging government powers beyond their constitutional bounds or by undermining individual liberties that the Constitution protects. As often as not, the court failed not by being too activist, but by not being activist enough: by allowing the legislative and executive branches to do as they wished, instead of compelling them to stay within constitutional constraints.

The most notorious of the Dirty Dozen is Korematsu v. United States (1944), in which the court gave its sanction to the Roosevelt administration's World War II internment of 120,000 Japanese Americans, none of whom had been accused of disloyalty or sabotage. "We are unable to conclude," Justice Hugo Black wrote for the majority, "that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry."

In Wickard v. Filburn (1942), the court upheld the government's power to impose quotas for wheat even on a small farmer who used what he grew right on his farm and sold none of it across state lines. The court should have struck the law down as a blatant violation of the Commerce Clause, which limits Congress to the regulation of interstate commerce -- something Farmer Filburn clearly wasn't engaged in. Instead the court allowed it to stand, throwing open the door to a vast expansion of federal control.

The most recent of the Dirty Dozen was the execrable Kelo v. New London (2005), which allowed private homes to be seized by eminent domain and turned over to other private owners -- not for "public use," as the Fifth Amendment requires, but merely because the new owners can be expected to generate more jobs or taxes than the owners who were dispossessed.

Time and again the Supreme Court has abetted the aggrandizement of government power at the expense of freedom and (in the words of the Ninth Amendment) the "rights . . . retained by the people." To be sure, liberal judicial activism untethered to constitutional limits has been a serious blight on the legal landscape. But judicial passivism has wrought grave harm too. If elected, Senator McCain says he will "restore the standards and spirit" the Framers intended for the judiciary. He can begin preparing for that task by reading The Dirty Dozen.